Excerpts from the Law Commission’s Mental Capacity and Deprivation of Liberty Interim Statement

We have therefore concluded that the new scheme should focus solely on ensuring that those deprived of their liberty have appropriate and proportionate safeguards, and should not seek to go as widely as the protective care scheme.

The responsibility for establishing the case for a deprivation of liberty will be shifted onto the commissioning body (such as the NHS or local authority) that is arranging the relevant care or treatment, and away from the care provider.

The required evidence would include a capacity assessment and objective medical evidence of the need for a deprivation of liberty on account of the person’s mental health condition. The commissioning body would also be required to undertake certain steps such as arranging for the provision of advocacy (or assistance from an appropriate person) and consulting with family members and others.

By way of amendments to the rest of the Mental Capacity Act, we will also seek to maintain, as much as possible, the article 8 ECHR protections that were contained in the supportive care elements of the scheme, but in such a way as to minimise the demand upon services. These amendments will be aimed primarily at ensuring that there is proper consideration, in advance of the decision being made, of the necessity of removing individuals from their own home and placing 9 them in institutional care in the name of their best interests.

We are considering whether a defined group of people should receive additional independent oversight of the deprivation of their liberty, which would be undertaken by an Approved Mental Capacity Professional. Owing to the vast number of people now considered to be deprived of their liberty following Cheshire West, it would not be proportionate or affordable to provide such oversight to all those caught by article 5 of the ECHR. Whilst we are still working to develop the precise criteria that would operate to identify this group, we envisage that this group would consist of those who are subject to greater infringement of their rights, including, in particular, their rights to private and family life under article 8 of the ECHR.

We do not consider that there is the same necessity to establish a bespoke general hospital scheme. We consider that our new system is sufficiently clear and straightforward to apply in any setting where a deprivation of liberty for the purposes of article 5 of the ECHR may occur, including hospitals, care homes, supported living and shared lives accommodation, and domestic and private settings.

We are persuaded that there should be no additional mechanism inserted into the Mental Health Act to cater for compliant incapacitated patients. The underlying policy aim of the provisional proposal can, instead, be achieved by providing that, if such patients are to be admitted to hospital (general or psychiatric) for purposes of assessment and treatment for mental disorder, their admission should be on the basis of the existing powers of the Mental Health Act.

In conjunction with the Department of Health’s proposals for a medical examiner system, this will mean that deaths of people subject to our new scheme are reported to medical examiners, who will be under a duty to make enquiries and refer the death to a coroner if the medical examiner forms the opinion that the death was attributable, amongst other matters, to a failure of care. The coroner will have the power to conduct an inquest in an appropriate case but will not be obliged to do so.

We were told that the advantages of a tribunal system included its accessibility, informality and speedy decision-making. But others pointed to the existing levels of knowledge and expertise in the Court of Protection and the difficulties of demarcation or overlap with the remainder of the Mental Capacity Act if a tribunal jurisdiction was introduced. We have not yet reached a final decision and will be considering our position further over the coming months.

Finally, they want a new name for the safeguards (suggestions to Olivia.Bird@lawcommission.gsi.gov.uk).

The attachment here is a report on what the Court has had to say about the Government’s continuing failure to do anything to restore the rule of law to the DoLS arena, with regard to its stance on not finding any new money for councils to use to abide by the due process implications of article 5 of the European Convention. It makes grim reading for all but a few – advocates and trainers, that is, for whom a role as a Relevant Person’s Representative, or in supporting RPRs, clearly beckons!

In a previous age, members of the government whose behaviour had attracted such polite but acerbic criticism from the judiciary would surely have felt the need to resign. In previous case law concerning responsibility for unlawful backlogs in the Mental Health Tribunal system, the money was found to put it right. I do not know how such cynicism or arrogance on the part of government, such that upholding the rule of law is not a good enough reason to fight the Treasury, has managed to insinuate itself, since then, but we will all be the poorer for it.

In a baleful irony, this judgement was handed down in the same week as the Care Act Statutory Guidance was reissued, including a re-written Safeguarding Chapter, with not a single word in it, on the impasse over RPRs and litigation friends, and the backlog in the Court of Protection – or on what any of it means for the value of the “Making Safeguarding Personal” initiative!

Last week, in BIRMINGHAM CITY COUNCIL v (1) D (BY HIS LITIGATION FRIEND, THE OFFICIAL SOLICITOR) (2) W (2016) [2016] EWCOP 8, the judge who has been making waves in the children’s social care world, Mr Justice Keehan, gave a judgement that was the inevitable sequel to his consideration of the same facts last year, when the young man in question was just short of 16 years old – he then reached his 16th birthday, at which point the Mental Capacity Act became a regime which could be applied to his situation.

The following bullets are the important principles that I believe can be derived from the case, which are of importance to the world of special schools and homes for children, whether through s17 Children Act service provision for children in need, s20 agreed accommodation arrangements, (where parental responsibility remains with the parents) or s25 secure accommodation orders or Care Orders under the Children Act (where PR is shared with parents, at the discretion of the council in question).

It is settled law that parental responsibility continues up to and until a child’s 18th birthday; Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. The principle that parental responsibility extends to children aged 16 or 17 was accepted by the Court of Appeal in Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1992] 4 All ER 627 but that doesn’t mean it extends in all regards.

“[T]he legal right of a parent to the custody of a child ends at the 18th birthday; and even up till then, it is a dwindling right which the Courts will hesitate to enforce against the wishes of the child, the older he is. It starts with a right of control and ends with little more than advice.”

Neither Nielsen nor Re K are actual authority for the proposition set out in the final sentence in paragraph 14 of [the first] RK [case] namely, “a parent may not lawfully detain or authorise the deprivation of liberty of a child”. There is no decision of the ECtHR or domestic authority directly and explicitly on the issue of parental consent to the confinement of a child in circumstances which would otherwise amount to a deprivation of liberty and in particular asserting that a parent cannot consent to the same.

A Local Authority v Dand others sets out the limitations of the circumstances in which a parent could give a valid consent, especially where the child was accommodated by a local authority pursuant to s 20 CA 1989 or was the subject of an interim, or final care order. The possibility of parental consent, now, sanctioning objective confinement based on agreement as to best interests would have to be limited to a child under 16, now, because of this later analysis in the instant case: Keehan J said this: “I am not persuaded that a parent can consent to the confinement of a child who has attained the age of 16. Such a consent falls outside the zone or scope of parental responsibility.“

In respect of the provisions of s8(1) Family Law Reform Act 1969 and s 20 Children Act 1989, giving any capacitated 16 or 17 year old rights to consent to treatment, or to accommodation by the local authority, the young person who still counts as a child cannot override the consent of a person with parental responsibility relating to treatment or accommodation.

However, the implication of this case is that if a capacitated child of 16 or 17 does not agree with the s20 confinement regime, and the regime or treatment amounts to, (or the proposed treatment would require) objective confinement amounting to deprivation of liberty, the arrangement would have to be authorised by the court as well. Putting this another way – the regime proposed under a s20 accommodation care plan needs to be consented to by any 16 or 17 year old if it satisfies the acid test: the parents cannot agree to the regime, as part and parcel of agreeing to the accommodation, obviating the need for an application to the Court – the CoP, or via reliance on the inherent jurisdiction of the High Court if it is unclear if the person retains the presumption of capacity for this specific issue.

It is already decided that a local authority who had parental responsibility for a child, by virtue of an interim care order or a care order, could not consent to the confinement of a child (under 16) which would otherwise amount to a deprivation of liberty: see A Local Authority v D and others [2015] EWHC 3125 (Fam) at paragraphs 26-29.

Although normal parental control over the movements of a child may be exercised by the local authority over a child in its care, the implementation of a secure accommodation order under s25 of the CA does not represent normal parental control. But a secure accommodation order will have been granted after a judicial process, and hence will not be a breach of human rights.

In all cases, the local authorities responsible for care planning, commissioning and best interests decision making, as well as funding, need to be the ones getting the cases to Court.

Summary for schools and children’s homes:

Under 15s in any setting, capacitated or incapacitated: parental consent can suffice to legitimise a benign regime that amounts to confinement or the use of the inherent jurisdiction is possible for the council, if the legitimacy of the regime is disputed by parents.

16+ – accommodated or under a care order of a full or interim nature, in all cases for other than a capacitated young person, positively consenting to the regime – in schools and OFSTED homes or supported living: Court of Protection even if the parents are in agreement, or an application under the inherent jurisdiction, if unsure about the child’s capacity (UNLESS the placement in the setting has been authorised under s25 Children Act or the MHA)

18+ and lacking in capacity in a CQC registered care home or hospital: DoLS and ultimately an appeal in the CoP

18+ and lacking in capacity and not in a care home or hospital: a Single Order application in the CoP

If, in either of the last two situations, the person isconfined against own wishes, and does not lack capacity, then the person’s supporters need to make a referral to safeguarding, and seek advice about seeking habeas corpus or using the inherent jurisdiction of the High Court.

“Despite caring for my son for 31 years with no problems concerning receipt of payments from Social Services and the ILF I have now been told that a Power of Attorney or Court Protection Order is required by our Health Trust in connection with payment of a Personal Health Budget for his care.

A solicitor has informed me that the first option is a no-go as he does not consider my son to have mental capacity to complete this, leaving a Court of Protection Order as the only option.

I am absolutely flabbergasted at this situation, especially having been told this will cost around £3,000.

When benefits are paid on the basis that the claimant needs the amount paid to live on and doesn’t include extra to save, it seems that responsibility for payment falls on me, my son’s main carer, who is unable to work due to the complex care he needs.

I would be very interested to hear any comments regarding this situation, in particular from anyone who has been in this situation.”

This is my response:

The advice is fundamentally incorrect, in my view, but for complicated reasons. So stick with it if you want to save £3000!

First of all there is no way that a person in a position of parent for a person with undoubted incapacity, should ever have been GETTING Direct Payments from social services if the person on whom they were going to need to be spent lacked capacity to consent to having one, knowing what it meant – which was that the person with needs was letting the council off the purchasing hook, and taking charge of their own purchasing, and all the liability that goes with it. There is not a parent in this country with a son or daughter with significant disabilities who would actually accept that the son or daughter him or herself is really IN CHARGE. That was what was so amusing, with all due respect, about the admittedly well-intentioned In Control movement being called ‘IN CONTROL’ – because the common law has always treated it as too obvious even for discussion that a person lacking capacity cannot conceivably be regarded as being or made to take the consequences, of being in control of complex purchasing, or an employment liability. It was the person’s circle of support who was put in control by the national policy of rolling out direct payments regardless of mental incapacity issues, albeit for the best possible motives! A direct payment ALWAYS – even back to 1996, involved a person having capacity to consent.

From 2009 it was appreciated that this was causing difficulties and the status of Suitable Person was invented by the 2009 Regulations. This development meant that a person could be chosen or put themselves forwards, and then authorised by the council to take a sum of money in their own name for the benefit of the needy person. NOT, please note, in legal terms, on behalf of them, as would be the proper analysis, if the ‘managing’ person was merely HELPING a person with reduced but still fundamentally functional cognitive decision making capacity – or if the managing person was a statutory agent for a person accepted to lack capacity. The regulations never went that far. These regulations constituted a formal set of rules about that whole question, which most councils (in my experience as a trainer) never got round to using properly, despite the obvious safeguarding implications.

HOWEVER – now that the Care Act and Health Budgets and direct payments for CHC are in force, both systems enable a person to be given the budgets to spend on another person, without formally being a deputy or an attorney.

The whole point of these systems is that a person need not incur the expense of deputyship or pretend that a person has got capacity to grant a power of attorney) in order to spend this type of care related money.

Any CCG saying otherwise, with respect, needs to read the governing regulations and get proper legal advice.

Anyone given this sort of a brush-off needs to write to the Health Trust and say that they do not believe that there is any justification under the National Health Service legislative framework (or to the council, mentioning the Care Act instead, if the person is getting a direct payment for social care or a split package) for insisting that a person needs the formal status of deputyship to have a direct payment; and that they believe that the regulations enable a person to be a person’s recipient of the budget, if the CCG [or council] thinks after proper consideration that the person is suitable. If the paying organisation regards the applicant as unsuitable, however, the organisation needs to give the applicant evidence-based rational reasons that are defensible in public law terms – as their stance, requiring deputyship or power of attorney – whether deliberately adopted or not, risks defeating the very purpose of the health budget/social care direct payment regulations…

But – please note, for comprehensiveness, that Deputyship doesn’t cost THAT much money either, even if one did apply for it via the Court. The benefit of going in for it would be that the applicant would then be legally authorised to spend other assets belonging to the incapacitated person and also sign contracts or tenancies in their name which is not what happens when one is merely authorised to spend the person’s Health budget or Personal Budget – because in THAT situation, one always signs contracts as principal ie in the recipient’s OWN name and not legally “on behalf of” the incapacitated person, using the direct payment to discharge the liability. If such an authorised person does a runner or misuses the money, then the contracting provider of a service, or the landlord, and even the paying council or CCG has direct rights of recovery against the dodgy person the organisation authorised, which is SO much better than treating the needy person as responsible for what the authorised person has gone and done with the money.

We have seen the same sort of issues arising with regard to tenancies for people put into Supported Living, in the undoubted interests of normalising their lifestyles but also saving councils money too, on the housing element of care – no attention paid to the legal niceties of the difference between a council’s placement and an individual’s contract of tenure.

NB ILF was different, by the way, because it was a grant from the government’s trust fund, and it could always be paid to a person FOR someone else – which is why councils often applied for it, for incapacitated people – and then used it to arrange care – so as to save money on the unmet need bit of the package that the council had to pay for, even though it sometimes made the person worse off financially, because of the different operation of the ILF and Fairer Charging social care charging regimes! A really interesting notion of conflict of interest there, in relation to best interests decision-making, some would say THAT was, but not now!

Placements are often justified on the grounds that behaviour which challenges needs to be addressed before community living is possible. But for many autistics this is backwards! Behaviour is communicative. Common causes of behaviour which challenges, in autism, are frustration and distress, due to difficulties with:• communication• uncertainty and unpredictability• sensory issues

Most staff working in care have had little or no good quality autism training. “Behaviour management” typically focusses on reactive management and restraint techniques! It is little wonder that autistics stuck in these situations display distress in such an adverse environment. In institutions individuals are typically subjected to:• change with little or no warning• little control over their environment• a highly unsuitable sensory environment• constant interaction and demands• very limited access to people with whom they can communicate effectively (e.g. family) or appropriate support for communication (e.g. AAC technology)It is hardly surprising if this results in behaviour which challenges.

Effective training of community-based staff to enable them to actually understand and anticipate an autistic perspective is essential. We need to move away from ineffective and damaging “reward and sanction” reactive approaches to behaviour management. Creating workable community support is possible. It isn’t always cheaper immediately, but it is in the long run and this should be very motivating to local authorities and trusts. A good starting point is to look for providers who take an autistic perspective seriously and make use of the autistic community as a source of knowledge about how seeing the world from an autistic point of view can help enormously. Most behaviour which challenges can be prevented and avoided – but institutions are completely the wrong place to do it.

Community provision can work but only if it is staffed by sufficiently well trained and supported staff who have a clear and deep understanding of autism on a practical level. “Awareness” courses are not enough. Learning about the triad of impairments is not much use when faced with a distressed autistic who can’t use speech to tell you what’s wrong. The latest “products” on sale from the autism industry are also of very dubious value – check out first whether they are really as evidence based as they sound – there is a lot of “neuro”-rubbish being talked out there. Exercises to retrain developmentally immature reflexes are little help when faced with an autistic adult head-banging to the point of bleeding. Creating an autistic friendly environment, addressing communication, autonomy and sensory needs can be a good start to proactive behaviour management. But community staff need to have confidence in their skills and knowledge to be able to do that. It isn’t going to happen more widely until the entire social care sector begins to learn enough about autism to really understand that autism is a fundamentally different way of being and approach the needs of autistics with fewer assumptions and an openness to those different ways of thinking and being.

I’m aware of a few providers doing some fine work in this area, but we need more. We also need more willingness from local authorities to think outside of the box and consider bespoke packages with sufficient funding and support for training to ensure good quality PAs equipped with real world autism skills.

Welcome to my new guest blog on Belinda Schwehr’s ‘Schwehr on CARE’ and thanks to Belinda for inviting me.

I have to focus my first posts on what I see as the most pressing human rights issue in social care: the approximately 3,000 individuals (many and perhaps most of them autistic) still stuck inappropriately in long-stay inpatient care 4 years after Winterbourne View.

The Justice for LB campaign is seeking further legislation in an attempt to resolve the issue. Whilst I wholeheartedly support their aims, I can’t see the approach of passing more legislation working. Here’s why. We already have law which addresses many of the issues, but it is simply being ignored.

(1) There is still widespread failure properly to implement the Mental Capacity Act. Capacity is frequently assessed wrongly because:(a) unwise decisions made by someone with a learning disability or autism are used as a basis to assume or evidence lack of capacity;(b) insufficient information and support are provided. All practicable steps to help the individual make the decision themselves are not actually taken. This is particularly true in autism, where it is often due to ignorance of steps which could help; (c) incapacity is assumed, based on one-off assessments, sometimes years previously;(d) incapacity is assumed for one decision on the basis of incapacity in relation to another very different type of decision, without proper analysis of similarities or otherwise;(e) assessments are too often based on the outcome of language-based IQ tests and in ignorance of the evidence that these may well not be a reliable approach to measuring cognitive ability in autistics.

(2) The Care Act already provides strong rights to be involved for adults themselves and for family (either in the form of those the adult asks to be involved or in the form of best interests consultees). There are rights to communication support/interpreters and provision for this to be a familiar person where this is the only way to achieve communication in the case of bespoke methods of communication (including behaviour only). The statutory advocacy duties are right there and properly qualified, independent advocates are the best possible support that people could have. So what’s the problem?

In far too many areas it just isn’t being implemented. It’s hard not to conclude that either local authorities are (a) ignorant of the law; or (b) simply hoping like mad that nobody else noticed.What can we do about it?

(1) Know the law and push for independent advocacy when someone is entitled to it. Councils cannot lawfully assume that family members are suitable informal supporters and use their presence to avoid providing an independent advocate UNLESS both the adult needing support AND the family member CONSENT. Nor can they avoid advocacy by using family members or friends as informal support without THINKING about whether the informal person is actually able to carry out the role of supporting the adult’s involvement appropriately.

(2) Know the law and push for the provision of a communication specialist (as WELL as an advocate) where an individual communicates in a way that the assessor does not understand. This means those who communicate only through their behaviour, those who have echolalia, those who use PECS, AAC or bespoke systems. And THIS MEANS adults who may lack capacity – they have a legal right to be heard and to be involved too!

(3) Know the law and push for PROPER capacity assessments: decision specific and with all practicable assistance, including communication support, full information about all options and processing time.

(4) Know the law and push for fully lawful decision making where someone does lack capacity – in full compliance with the MCA. IMCAs, DOLS, best interests consultees (including family members and providers), proper respect for human rights and all the principles.

I just listened to the Community Care webinar from the Law Commission’s Tim Spencer-Lane. It was useful, although my Chat box disappeared as soon as I clicked on full screen mode and would not come back. I logged out and back in again, in order to have a voice!

The basic thrust of the proposals is a widening of the notion of the need for special scrutiny for all packages involving elements of restriction, not merely deprivation of liberty. This would be called Protective Care. There was a definite undercurrent to the presentation, I thought, to the effect that the Law Commission thinks that this is what should have been happening anyway, because of the special provisions in the MCA about restriction of liberty having existed since 2007, and judicial reviews long before then, and since, stressing the central importance of the care plan as the source of the council’s accountability for proper social work decision-making. And I would have to agree, I am afraid…

Now that the Care Act provides for more due process rights, within a linear customer journey, each with its rules and ‘involvement’ rights attached, and for formal s25 statutory care plans, the Commission may look as if it is proposing to broaden the burden for the sector, but in fact it is not, in my view.

Restrictions, or restraints within a care package, let alone full-on deprivation of liberty for a person’s best interests, should always have been properly assessed for, and care planned for, so that it could be specifically commissioned, and thus paid for properly, in my view.

I would wish to say as politely as possible that if the need for legal literacy and defensible decision-making in the statutory sector had ever been embracedand resourced by the DH, elected Members in councils and the leaders of the social work sector, and by the TCSW, the independent reviewer of adult social work education policy for the future, or the universities offering qualifying degrees, we might not have had to have had a House of Lords Select Committee slam the whole sector for non-implementation of the MCA, or be facing another 18 months of uncertainty about deprivation of liberty.

But for now, these are the questions that came to my mind, straight away, during the webinar.

Will the Approved Mental Capacity Practitioner (a new role and title for the BIA, as of now) be allowed to be from the same council as the commissioner of the care?

Is it appreciated that the approval of an AMHP, and presumably an AMCP, too, can and could always be pulled, by the authority which has granted it? I have seen this happen in practice when the independent thinking of the AMHP (an ASW, actually), upset the council?

How are medical professionals going to be obliged to do the independent objective assessments that are planned, outside of the hospital system? That is, in supported living, shared lives, people’s own home settings etc? It’s not in the GP contract, and it won’t be timely if it were just to be done under ‘co-operation’ provisions?

Clearly, since ECHR jurisprudence requires medical expertise for lawful article 5 deprivation of liberty, but not for article 8 mere impingements on liberty, that can be justified, we will still need to distinguish between restriction and deprivation, and the webinar did not discuss how we might do that. Indeed, it seemed to envisage objective medical expertise for the scrutiny of all protective care, and that would have an enormous impact on NHS time. Extending it eats into the s5 cloak of legal protection based on best interests decision making by ordinary individuals, as long as the MCA Code has been followed, and there would be debates between families and doctors as to whether what was going on was protective care or merely supportive care. This has undertones of the shenanigans that played out nationwide when there was a distinction between housing related tenancy support in supported living settings and ‘care’ inputs properly seen as adult social care, does it not?!

I groaned inwardly at the proposal to streamline advocacy from all statutory routes to entitlement, before Care Act independent advocacy has even got started, but can see it makes sense. But what I did not understand was whether people in protective care regimes would get advocates even if they are NOT unbefriended (ie they have got relatives being best interests consultees, already), in the new consolidated approach to advocacy?

I was not able to understand the difference between a regime for so-called supported decision making and the appointment at common law of someone of a person’s own choosing, to help them make decisions, or even make one for them – that is informal agency, and all you need for that to be viable and valid is the mental capacity to appreciate that the decision you are facing is a difficult one where you could do with some support or decision making in particular circumstances. Short of actual substituted decision making, it’s just another person’s opinion, and of some help. If it’s actual decision making for the person, it’s informal agency. If the decision is in the sphere where the person lacks capacity, there is best interests consultation of all interested others, already provided for, and the decision maker is the agency that is going to pay for the implementation of the decision. And we don’t need a new regime for any one of these three types of inputs. But as soon as someone loses capacity to appreciate that they have asked someone else to make decisions, they need to have made an LPA, (the welfare sort does not spring up, until the person lacks capacity for the issue in question) and that regime already exists, albeit that it is costly and complex. So what is the justification for supported decision making, and where is it supposed to FIT?

I would be really keen to understand what would become of guardianship, which is of course, already a regime for protective care, with rights of challenge to a tribunal?

My eyebrow shot up at the idea of the CQC inspectors regulating compliance with this new regime’s requirements, even if they did get ‘a lot more smart’ (Tim’s words, not mine!). I believe, (forgive me if I am wrong as a matter of the facts) that their staff don’t routinely come to safeguarding meetings, supposedly because of conflict of interest concerns regarding their regulatory role. So I am boggling at the thought of how they will regulate providers regarding deprivation of liberty. And their reticence in this regard is complicated by the underlying tension behind the Scope regulations and government policy for community based living. Is there any example of the CQC actually having prosecuted a provider of decent, albeit very secure and protective supported living, for not being registered as a care home, I wonder, since the Alternative Futures litigation, way back when? I would be amazed, if there had been – because of course it has been government policy since the mid 1980s and the early iterations of Valuing People (now superseded) that people lacking capacity are best cared for in the community – where they can get Housing Benefit and income support to pay for more of the necessary care, rather than in registered care homes, where the environment can actually be managed by a provider owing a 360 degree duty of care.

I think we need some truth in social care policy, before we spend more money on a replacement for the DoL safeguards…but I shall look at the consultation documentation with interest. We have 4 months to do it, ladies and gentlemen. Another holiday with a laptop in tow, appears to be on the horizon!

Judicial politeness is wearing VERY thin, over Deprivation of Liberty, the suggestion by ADASS that there would be 30,000 extra cases, and the latest round of scenarios being brought to Court of Protection, such as the Rochdale, Tower Hamlets, Bournemouth and W City Council cases, as well as the fall-out from Re X.

Munby LJ’s case management approach, in Re X, whereby he secured the opportunity to get 25 varying situations to court, so he could make up some principled procedural rules for streamlining, and on which the new Rules of Court have been based, has been held to be something he had no power to do – by a Court of Appeal saying so, albeit that it admitted that it nopowereither even to hear an appeal from his judgment!

Mostyn J and Bodey J are fighting a rearguard action to differentiate between supported living/own home/benign relatives-driven restriction of liberty or deprivation (in the latter case on the footing that it is not imputable to the State, if ‘diluted’ by the input of benign relatives’). However, the Court of Appeal went along with the allowing of an appeal against Mostyn J’s Rochdale decision (without saying why, much to Mostyn’s tangible chagrin) presumably on the footing that a person’s physical inability to leave CANNOT CONCEIVABLY gainsay the finding of factual deprivation of liberty, if they are also incapable of asking to leave: one would still need to consider what would happen if someone else turned up to take them away, in order to determine whether they are actually NOT FREE to leave, and hence ‘deprived’ and in need of that situation being authorised.

In the children’s field, in D, a 15 year old was held to be lawfully deprived of his liberty because his parents had consented, even though the MCA applies post 16 for the last two years of a child’s minority. In the vast majority of cases, under 18 year olds in special schools and care homes will be living where they’ve been placed with parental involvement and acquiescence through the application of full or shared parental responsibility, so the approach in D’s case shows the way forwards if we do not want to extend DoLS to Ofsted settings. Seeking explicit parental consent to behavioural support plans, is my recommendation, there!

Fascinating though it is to people like me, one can easily see that this simply cannot go on – it will either fatally damage councils’ finances, the practical day to day running of the judicial system and the Official Solicitor’s viability existence, or (if we fudge it) the rule of law.

I think that we must all remind ourselves that it is not deprivation of liberty that is bad, or wrong, morally, legally or ethically: it is sometimes a Care Act need which must be funded, and often a person’s human right, precisely because of their incapacity. WHAT IS WRONG WITH IT, IS THAT IT MUST NOT BE ARBITRARY; AND IT MUST BE OPEN TO THE PERSON TO CHALLENGE THE SITUATION USING THE JUDICIAL SYSTEM. AND OF COURSE, people without mental capacity need extra help to USE the judicial system in the first place… and may just be invisible, if they have no relatives to raise their eyebrows at the care package.

A look back at the good old days…

Since the Bournewood case, in the late 1990s, we have had at least 5 years of consultation, 2 pieces of legislation, 2 tranches of guidance, about 100 cases, taking the law up some predictable twists and turns, and an industry of training, for BIAs, IMCAs and RPRs. And yet BEFORE the Bournewood case, when declaratory relief was all that there was, the same two types of cases, essentially, came to court:

a) Cases where the person confined did not accept that they actually lack capacity, in relation to the regime in which they are being managed and that they were therefore being detained without legal excuse. Such people needed to challenge the legitimacy of that detention – and therefore needed legal aid and HELP to do so – only those with litigation friends made it to court…

b) Cases where a third party was either trying to get to see the person, inside, or to improve the conditions under which the care was being delivered – in which case the person needed to bring judicial review proceedings about the appropriateness of the package – or was trying to break the person out of the setting in which they were confined – in which case they needed to make an application for asserting that the alternative they could themselves offer, was what was really in the best interests of the person concerned, or that the care package had been concluded without proper best interests decision making.

A variation on this second theme was where the State needed an injunction to make interference with the person into a contempt of court, and thus keep the package stable.

This analysis still holds good today, and explains the difference between the ADASS guestimate as to the floodgates if one followed the Cheshire West case, and the real number of cases that have been conmenced, which the Court of Protection is coping with at the moment. Where a person is being well cared for, with the wholehearted support of relatives with capacity to challenge the plan, it will be legally dubious in only a tiny percentage of cases, by virtue of the relatives’ real motives not being properly scrutinised, or the person’s capacity not being properly assessed.

I am not knocking the emphasis in the case law on non-arbitrariness and access to judicial scrutiny under article 5.4 of the Convention is importance, but I am saying that one does not need “double” care planning (the essence of DoL Safeguards) to achieve this. What one needs is a clear system for State intervention (which the MCA and new Care Act create, in my view); actual compliance with the Care Act, by councils and the social work sector; a properly funded Official Solicitor system and rules of court allowing party status in the cases that DO have to be brought, and a properly funded IMCA system with power to challenge statutory or privately arranged care plans where an independent person thinks something is not quite right…

What happens abroad?

It isn’t happening in other European countries, as far as I can tell. They don’t even have DoLS-type regimes for administrative scrutiny in other Convention countries, let alone judicial scrutiny.

I wonder why this is? Is it that in all other Convention countries, people are simply not NEEDING to be confined by dint of uninsightful challenging behaviour, or dementia? Are they all electronically chipped or under CCTV? Is it that nobody is really bothered in those other countries whether it is a breach of human rights, if it is happening without access to legal scrutiny, and we are just much more civilised? Or is it that our care sector workforce and care homes and hospitals are regarded as of a much lower quality in terms of humanity or stimulation, than is the case, abroad? Or is it that those needing it, elsewhere, are all looked after by their relatives, with no real State intervention, and the real problem is that the majority of people who might otherwise be carers, here, don’t wish, or can’t afford, to give up work, here, in order to do it at home? Where is the research on what happens in other countries signed up to the European Convention, I am wondering? Any academics out there with the answer to that question, please?

The next steps

When the new DOLS proposals come out on 7th July, they will have to take the Care Act into account.

That Act and the guidance stresses the pervasiveness of the Mental Capacity Act at the assessment and care planning stages; it suggests that regimes for restraint and confinement be explicitly planned for and commissioned, and it makes safeguarding turn on a concern about abuse or neglect, to which well-planned and properly resourced benign care cannot ever give rise.

So it seems to me that if councils knew what they were care planning for, in light of a proper finding about capacity, we would know who was deprived of their liberty according to the acid test, and not rely on care homes and hospitals to tell us. We could return to a position whereby incapacitated people who need caring for continuously in order to be safe could be presumed to be legally detained, as of unsound mind, so long as the means to challenge that position for people lacking capacity included funded advocates who could get litigation friends or the new style representatives sorted out, to probe and take the initiative to assert that the regime should not be happening, in any given case.